A Soldier Wearing a Ball and Chain

Eminent American judge and legal scholar Oliver Wendell Holmes, Jr. once expressed the following disturbing opinion:

“If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, I don’t doubt that your act was inevitable for you but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like. But the law must keep its promises.”

Essentially, Justice Holmes believed that the importance of crime deterrence outweighs that of considerations about social circumstances which have led a person to go down a criminal path. Yet the idea of sacrificing a hapless individual to the common good runs contrary to modern notions of civil rights. This struggle between the individual and the masses is echoed in Six Flying Dragons, a historical drama about three fictional and three non-fictional personalities’ involvement in the establishment of the Joseon dynasty. In the dark times of the preceding late Goryeo dynasty, when many are already dying under oppressive politics, its characters wonder if their own political means are really worth more than the ends. As a 12-year-old boy, bright-eyed protagonist Yi Bang-won already had his own answer:

“To be good is to embrace and accept even the evil, but there is absolutely no place for evil in the concept of justice. Justice is achieved precisely by eliminating evil. […] Until my power grows, I will definitely not be subserviently good.”

With that, child Bang-won murdered three older students who had been taunting him and schoolmates into burning Mencius’ books. He grows up to become King Taejong, an actual Joseon monarch simultaneously known for his outstanding administrative capability and bloody ascension to the throne. The drama imagines him as an idealistic, Ra’s al Ghul-style reformer and explores this intriguing side of political psychology.

“New Joseon” (In distinction to the more ancient kingdom of Gojoseon (lit. old Joseon).)

But why cannot justice, the state in which people act only in accordance with what is deserved and what is right, be attained by converting evil to good? Besides, caring for a person’s physical welfare is by itself an arguably lesser kind of good; the greater good would be helping him become a more virtuous individual at the same time. Justice Holmes’ utilitarian logic, which, in fact, functions on the tacit assumption that mere imprisonment is insufficient to prevent a particular kind of crime in a particular geographic area, could have been combined with the respect for sanctity of life by investigating and redressing psychosocial causes of the criminal’s wayward behavior. In so doing, potential wrongdoers would ideally lose the impulse to commit crimes altogether, instead of just having it restrained under legal threats. That may actually be more effective in improving the avoidability of criminal acts. With such corrective actions making up for the additional deterrent effect expected from capital punishment, there would be minimal need to put someone on the death row.

Yi Bang-won (future King Taejong)

The idea of “power,” albeit not always in the form Bang-won envisaged, may indeed explain any reluctance to put in more effort to solve the capital offender’s background issues instead of executing him. For one thing, criminology is still not a perfectly understood discipline. We simply do not have solutions for all the social ills leading to crimes. Another obstacle is emotional revenge. Law also serves a retributive function, and segments of the populace, which could have pushed for reforms, may be indignant about sparing a thought for a felon who did not do the same for his victim(s). Pondering about his previous circumstances, they probably fear, may breed sympathy and put themselves in the same camp as him. There is, lastly, a concern that some disadvantaged individuals would perversely turn to crime to attract attention to their problems. Thus, standing in the way of non-legal corrective approaches are the issues of (i) powerlessness with regard to societal capabilities, (ii) power control over criminals and (iii) power abuse by would-be criminals.

Clearly, that somewhat contradicts the purposes of judicial systems. Benevolent means—feared to erode power and associated with being “good” by Bang-won—may not be the most salient feature of legal justice, but fair means surely are one of the foremost “promises” Justice Holmes would acknowledge that “law should keep.” Caution should thus be taken to ensure that, in relation to (i), current limitations do not become excuses for not continuing with the hunt for fixes. As for (ii), retributive justice is supposed to be meted out in accordance with not just the wrong(s) committed by a person (i.e. actus reus) but also his mental culpability, which depends on criminal intent (i.e. mens rea) and possession of free will (i.e. absence of duress). If, as in Justice Holmes’ example, the unlawful act was undoubtedly “inevitable for” someone, perhaps because his dysfunctional environment has developed in him nothing more than a warped view of morality, it probably cannot be just to close an eye to his prior predicament. In any case, we can fully understand how deserving a particular wrongdoer is of punishment of any kind only after examining his criminal roots. Finally, with respect to (iii), the fair mechanism to adjust in response would not be support for crime science but provision of accessible avenues for would-be criminals to directly air any grievances and seek assistance.

That still leaves the question of sentencing for the offender whose act(s) cannot be helped while the search for causes of criminal behavior and effective interventions is ongoing. Maybe utilitarians will continue to win out in parts of the world. One point they may have to acknowledge, though, is that, like criminal acts, executing helpless felons is a kind of evil, only that one evil may be lesser than another. Given current limitations, evil may actually go on to have a place in models of justice for quite some time.

Justice Holmes’ poetic imagery, nevertheless, does offer a sliver of comfort. His vision of criminal and judge as potentially empathetic partners in a rational conversation, working together towards a better humanity, may strike some people as hypocritical, but it at least steers away from an “us” versus “them” mentality that possibly diminishes the will to understand the whole picture and keeps mutual animosity unbridled. Law and public policy can make clear to the criminal and would-be criminals sharing backgrounds similar to his (with care taken to avoid generalizations and unfair discrimination) that they merely request harmful acts like his be discontinued and do not truly desire to exterminate his irreducible being. And when a marginalized group senses the intensity with which the community is working to secure their interests, there will probably be less emotional impetus to act in stubborn defiance of societal norms. The attempt may very well be the solution.

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